Proceeding for the Appointment of a Court Appointed Guardian

When there is a question whether a person may no longer be able to take care of themselves, they may be subject to court proceedings to assign them a guardian. This happens when the person has not completed a Power of Attorney for Property or a Power of Attorney for Health Care The judge may name either a guardian of the person, a guardian of the estate, or both. 

Representing all parties involved in guardianship decisions and appointments

At Sheryl E. Fuhr & Associates, our lawyers represent people at hearings that determine the need for a guardian. We also may accept court appointments to investigate a proposed guardianship is necessary. We visit the home of the person claimed in need of a guardian and write a report to the court recommending the best course of action to protect the person's best interests. If you are worried about the situation of an elderly neighbor, or relative, or if you are a senior citizen trying to fight the appointment of a guardian, contact our  office to speak with an experienced elder law attorney dedicated to arriving at a solution that works.

Guardianships

What is a Guardian of the Person?

A Guardian of the Person is a person who has been appointed by a court (usually the probate division of the circuit court) to have the care and custody of a minor or of an adult person who has been legally determined to be incapacitated.

What is a Guardian of the Estate?

A Guardian of the Estate is a person or a corporation, such as a bank or trust company, appointed by a court (again, usually the probate division of the circuit court) to manage the property of a minor or of an adult person who has been legally determined to be disabled.

Who May be Appointed Guardian?

The same person is usually appointed both guardian of the person and guardian of the estate, although it is possible for different persons to be appointed with respect to the same minor or incapacitated and disabled adult. Usually, parents have the first priority for appointment as guardians for the estates of their minor children, although such appointment is necessary only if the minor will receive property from some source other than his or her parents, such as the settlement of a personal injury action, an inheritance from a decedent's estate or some other source of property or income. Parents are the natural guardians for their children and need not be appointed as such by a court. However, if a minor has no parents, then the court may consider a guardian chosen by the minor if the minor is over the age of 14 years. The court may also consider a person named in the will of the last parent to die. In any event, the person appointed by the court must be suitable and qualified. If the minor is unable to choose a guardian and if the last surviving parent failed to designate a guardian in his or her will, then the court will appoint the most suitable person, usually an adult brother or sister or other close adult relative who is willing to serve.

A disabled person may designate his or her own guardian if the person is able to communicate a reasonable choice to the court. In addition, any competent adult person may designate a suitable person to serve as guardian or a suitable person or eligible corporation to serve as guardian, if done in writing and complies with the provisions of the Illinois Standby Guardian statute. If no suitable person has been nominated by the incapacitated or disabled person, the court will consider appointing, in order: the spouse, parents, adult children, adult brothers and sisters and other close adult relatives. If there are no relatives willing or able to serve, the court may appoint any suitable person (such as a close friend) or, if no one steps forward, the public administrator.

What Does it Mean to be Incapacitated or Disabled?

As defined by Illinois law, a "?Disabled person? means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects."

What is the Legal Effect of a Judicial Determination of Disability?

The answer depends upon whether the court has made a finding of total disability and incapacity or only partial disability and incapacity. If the court finds that a person is only partially disabled and partially incapacitated, the person is still presumed competent and loses only those rights specified in the order. On the other hand, if the court finds a person totally incapacitated or totally disabled, or both, the person is presumed to be incompetent for all legal purposes. An adult who has been determined by a court to be disabled is referred to as a "disabled person."

How are Guardianship and Guardianship Proceedings Commenced?

Proceedings are commenced when a "petitioner" files an application for the appointment of a guardian in the probate division of the circuit court in the county in which the minor or alleged incapacitated or disabled person (the "respondent") resides. After application is filed, the court will set a date for a hearing. In the case of a minor, notice of the application must be served before the hearing: upon the minor (if over the age of 14 years); his or her parents and spouse, if any; anyone having care and custody of the minor; and any agency charged with supervision, control or custody. In the case of an alleged disabled person, notice of the application must be served: upon the respondent; his or her spouse, parents, children or other close relative over the age of 18 years; any person acting in a representative capacity with respect to any of the respondent's financial resources; and any person having care and custody of the respondent.

What are the Duties of a Guardian?

A guardian must always act in the best interest of the ward. The guardian of a minor is charged with responsibility for the minor's custody and control, and must act and make decisions relative to the minor's education, support and maintenance. A guardian of an incapacitated person must act and make decisions relative to the ward's care, treatment, shelter, education, support and maintenance. A guardian must assure that the ward resides in the least restrictive setting reasonably available and receives all medical care which he or she may need. A guardian may give necessary legal consent for the ward's treatment. However, a guardian may not admit the ward to a mental health facility for more than 30 days without a court order. A guardian must report to the court, at least annually, on the ward's physical condition.

Is the Guardian Personally Liable for the Debts of the Disabled person or Ward?

No, as long as the guardian indicates that he or she is acting on behalf of the disabled person or ward in a representative capacity. In addition, the guardian does not assume personal responsibility for the disabled person's or ward's debts which may have been incurred by the disabled person or ward prior to the court's determinations that he or she is a disabled person. Of course, unauthorized use of the disabled person's estate or misappropriation of the disabled person's property by the guardian will likely require revocation of legal authority as guardian by the court and may result in personal liability for any harm or loss suffered by the estate.

How is a Guardianship Terminated?

Guardianship terminates when the minor reaches 18 years of age. If there was a guardianship estate for the minor, the guardian prepares and files with the court a final accounting of the administration of the estate. Upon the court's approval of the final accounting, the guardian transfers the estate to the former ward, upon filing a final receipt with the court, the guardian is discharged by the court from any further responsibility.

On the other hand, guardianship for a disabled person terminate only when the disabled person is found to be competent by the court or upon the death of the disabled person. When either of these two events occur, the guardian prepares a final accounting for the court and the guardian is discharged in much the same manner as with the termination of a minor's estate. In some cases when the estate of the disabled person has been completely exhausted, the guardian may be discharged by the court upon filing a final accounting but the duties of the guardian will continue until such time as the ward is found to be competent by the court or dies.

Guardianship of the person and guardianship of the estate work together

The court appoints guardians of the person to take care of the elderly person's physical situation and needs. This means determining where the person will live, making sure that they have proper food, clothing, and medical care. The living situation selected by the guardian must allow the elderly person freedom and ability to make decisions as appropriate. This type of guardian also works with the guardian of the estate. This ensures that the medical care, living arrangements, and recreational opportunities are affordable for the elderly person.

Removing Guardians

Our law firm also represents people, usually elderly persons or their families, who wish to have a guardian removed. For example, when an adult child suspects that a guardian may be stealing funds from a parent, he or she should contact an attorney immediately to find out what can be done about the situation.